Proposed $103,265 H-1B Fee in 2026: What Employers Need to Know Before Planning FY 2028

On August 25, 2026, the Department of Homeland Security (DHS) published a proposed rule that would impose a $103,265 fee for each covered H-1B cap-subject petition. The proposal appears in the Federal Register as Fee for Certain H-1B Petitions, Federal Register document 2026-17324.

This proposal is not final. It is not currently payable. Employers should not treat the proposed fee as an existing filing requirement or assume that it will apply to the FY 2028 H-1B cap season.

The proposal is subject to a 30-day public comment period. DHS may revise, withdraw, or finalize the rule after reviewing public comments.

What the Proposed $103,265 H-1B Fee Would Do

If finalized substantially as proposed, DHS would add a new fee to each covered H-1B cap-subject petition. The fee would be:

• $103,265 per covered petition.
• Payable at the time of filing the petition.
• In addition to existing H-1B filing fees and statutory payments.
• Separate from any other payment obligation imposed under a presidential proclamation or another legal authority.
• Applicable to petitions seeking an allocation under either the regular H-1B cap or the advanced-degree exemption.

The proposed fee would be codified in 8 CFR 106.2(a)(3)(xii). DHS states that the fee would support a portion of the federal government’s costs associated with administering the lawful immigration system.

The proposed revenue would support activities involving multiple agencies, including:

• U.S. Citizenship and Immigration Services.
• U.S. Customs and Border Protection.
• U.S. Immigration and Customs Enforcement.
• The Executive Office for Immigration Review.
• The Department of State.
• The Department of Labor.

The Federal Register notice identifies an estimated annual revenue projection of approximately $8.8 billion if 85,000 covered petitions were filed and each generated the proposed fee.

Which H-1B Petitions Would Be Covered?

The proposal would apply to new H-1B petitions subject to the annual numerical limitations. These limitations include:

• The regular annual cap of 65,000 H-1B visas or statuses.
• The additional 20,000 exemption for beneficiaries with qualifying U.S. advanced degrees.

The advanced-degree exemption is commonly called the master’s cap. A petition eligible for the advanced-degree exemption would not avoid the proposed fee merely because it is selected from the 20,000 advanced-degree allocation.

The proposal would therefore affect employers seeking to sponsor new cap-subject workers through either allocation.

H-1B classification generally requires a position involving a specialty occupation and a beneficiary who meets the applicable education, licensing, or equivalent-experience requirements. Employers should review the USCIS H-1B specialty occupations guidance when evaluating the underlying eligibility of a proposed filing.

Proposed Exclusions From the New Fee

The proposal would not apply to every H-1B petition. Proposed exclusions include certain petitions that are not seeking a new cap allocation.

These proposed exclusions include:

• H-1B petitions filed by qualifying institutions of higher education.
• Petitions filed by qualifying affiliated or related nonprofit entities.
• Petitions filed by qualifying nonprofit research organizations.
• Petitions filed by qualifying governmental research organizations.
• H-1B extensions for beneficiaries who were already counted against the cap.
• H-1B amendments for beneficiaries who were already counted against the cap.
• H-1B transfers or changes of employer for beneficiaries who were already counted against the cap.
• Other petitions involving beneficiaries who previously received a cap allocation and remain exempt from the cap under applicable law.

The analysis is fact-specific. An employer cannot assume that nonprofit status alone creates an exemption. The organization, employment relationship, position, and applicable statutory exemption must be evaluated.

A worker currently employed in a cap-exempt position may become subject to the cap when moving to a cap-subject employer. Conversely, a beneficiary previously counted against the cap may qualify for a subsequent petition without going through the annual cap process. Employers should document the basis for any claimed exemption.

The Proposed Fee Is Not Currently Due

The proposed $103,265 payment is not currently required. It is not law. It is not a final regulation. Employers should continue to use the applicable USCIS forms, filing instructions, and fee schedule for current petitions.

The proposed rule does not establish a current effective date. Before a new fee could become payable, DHS would generally need to:

1. Review public comments.
2. Decide whether to proceed.
3. Publish a final rule.
4. Establish an effective date and implementation procedures.
5. Update applicable USCIS filing instructions and fee guidance.

Employers should not reject a qualified candidate, cancel a current filing strategy, or assume that a current H-1B petition requires an additional $103,265 payment solely because the proposal was published.

Relationship to the Earlier $100,000 H-1B Payment

The proposed fee is distinct from the earlier $100,000 payment associated with Presidential Proclamation 10973. The Federal Register notice states that the proposed $103,265 fee would be based on different legal authority.

The earlier $100,000 payment has been the subject of litigation and changing agency guidance. The outcome and practical collection status should not be described as permanently settled without reviewing current official sources. USCIS has issued updates concerning court proceedings and the government’s position regarding that payment.

Employers must distinguish between:

• The proposed $103,265 regulatory fee.
• The earlier $100,000 payment requirement.
• Existing H-1B filing fees.
• Statutory fraud-prevention, workforce training, or other applicable payments.
• Any future changes resulting from litigation, legislation, agency guidance, or a final rule.

If both requirements were legally applicable to a particular filing, the proposal indicates that DHS could require both. Employers should not assume that both payments currently apply, and they should not assume that either requirement will remain unchanged. Review the current USCIS H-1B guidance and obtain case-specific legal advice before filing.

What Employers Should Do Before FY 2028 Planning

The FY 2028 H-1B cap season is a future planning cycle. The proposed fee may affect recruiting budgets and sponsorship decisions if it becomes final, but its final amount, scope, effective date, and implementation rules remain uncertain.

Employers and HR teams should take the following steps.

1. Do Not Base Hiring Decisions on the Proposal Alone

The proposal should not be treated as a current cost obligation. Employers should continue evaluating candidates based on business needs, legal eligibility, workforce requirements, and the current regulatory framework.

A proposal may change before finalization. It may also be challenged or delayed after finalization. A hiring decision based exclusively on an uncertain future fee creates unnecessary operational risk.

2. Model Multiple Financial Scenarios

Finance, HR, legal, and business leaders should model separate scenarios, including:

• Current H-1B costs without the proposed fee.
• A scenario involving the full $103,265 fee.
• A scenario involving a revised or reduced fee.
• A scenario in which the fee does not become effective for FY 2028.
• A scenario involving additional applicable fees or payment requirements.
• A scenario involving alternative immigration classifications.

Each model should identify the number of potential petitions, the estimated filing dates, the likelihood of selection, and the effect on recruiting and compensation budgets.

3. Preserve Recruiting and Filing Records

Employers should preserve records showing:

• The business need for the position.
• The recruitment process.
• The job description and minimum requirements.
• Candidate qualifications.
• Selection and rejection decisions.
• Wage analysis and compensation approvals.
• H-1B registration and petition records.
• Communications concerning sponsorship costs and timing.

These records support compliance and facilitate later review if the employer must change strategy because of a final rule or other policy development.

4. Evaluate Cap-Exempt Opportunities

Employers should determine whether the position or organization qualifies for an H-1B cap exemption. This analysis may involve:

• An institution of higher education.
• An affiliated or related nonprofit entity.
• A nonprofit research organization.
• A governmental research organization.
• A qualifying employment relationship with an exempt institution.

The exemption must be supported by the facts and applicable law. It should not be assumed based solely on an organization’s nonprofit designation.

5. Review Alternative Immigration Classifications

Depending on the employer, employee, nationality, position, and corporate structure, alternatives may include:

• L-1 classification for qualifying intracompany transferees.
• O-1 classification for individuals with extraordinary ability.
• TN classification for eligible citizens of Canada or Mexico in qualifying professions.
• E-3 classification for eligible Australian professionals.
• H-1B1 classification for eligible citizens of Chile or Singapore.
• Employment-based permanent residence, including appropriate EB-1, EB-2, or EB-3 strategies.

No alternative classification should be selected solely to avoid a fee. Each category has separate requirements, limitations, and documentary standards. Employers should conduct a complete eligibility analysis before changing immigration strategy.

6. Review I-9 and Workforce Compliance

A change in immigration strategy does not eliminate employment verification obligations. Employers should review:

• Form I-9 completion and retention procedures.
• Employment authorization expiration tracking.
• Reverification practices.
• Remote document examination procedures, where applicable.
• Public access file and LCA obligations.
• Internal immigration records.
• Consistency between payroll, personnel, and immigration documentation.

Blasingame Law LLC provides internal I-9 audit guidance for employers. Employers should identify and correct compliance deficiencies before a government inspection or audit.

How the 30-Day Public Comment Process Works

DHS opened a 30-day public comment period when the proposed rule was published. Comments should be submitted through the federal eRulemaking portal at Regulations.gov using DHS Docket No. USCIS-2026-0298.

The expected deadline is approximately September 24, 2026, based on the August 25 publication date. Employers must verify the precise deadline in the official Federal Register notice because the controlling notice and docket instructions govern.

A useful comment should:

1. Identify the proposed rule and docket number.
2. Address a specific provision or stated assumption.
3. Explain the practical, financial, or legal concern.
4. Provide supporting data or authority.
5. State a specific recommended change.

Comments should be submitted in English or with an English translation. The notice states that emails, mailed letters, hand-delivered materials, and other submissions outside the designated process may not be considered comments on the proposed rule. Submitted comments may become publicly available.

Employers considering comments should coordinate with immigration counsel, government-relations professionals, or relevant industry associations. They should also monitor the docket for agency responses and a potential final rule.

Monitor Official Sources and Obtain Legal Guidance

The proposed $103,265 H-1B fee presents a significant potential cost for employers. It does not, however, create a current payment obligation. Its effect on FY 2028 planning cannot be determined until DHS completes the rulemaking process and issues further guidance.

Employers should monitor:

• The official Federal Register notice.
• USCIS H-1B specialty occupation guidance.
• The Regulations.gov docket and submission portal.
• USCIS fee schedules and filing instructions.
• Current court orders and agency guidance concerning the earlier $100,000 payment.
• Updates from qualified immigration counsel.

Blasingame Law LLC advises employers on business immigration strategy, H-1B petitions, workforce compliance, and employment-based permanent residence. Review our Business Immigration Solutions or learn more about our Colorado Springs business immigration lawyer services. To discuss a specific workforce plan, schedule a consultation or contact Blasingame Law LLC.

This article provides general educational information based on the proposed rule and publicly available agency materials as of August 26, 2026. It is not legal advice and does not create an attorney-client relationship. Immigration requirements, fees, litigation, and agency guidance may change. Employers should verify the official Federal Register notice and consult qualified immigration counsel regarding specific cases and planning decisions.